One thing consistent about "case law" - it is that appellate decisions are built upon a foundation: Issue(s) in play, Reasoning, Analysis, and Conclusion.?ÿ In analyzing prior decisions, a snippet will be cited, and compared with the facts at hand.?ÿ The process, if framed (Sorry, Jim) correctly, yields a well reasoned conclusion.
While land surveying utilizes a similar process, the use of citations is warranted only in very narrow circumstances.?ÿ Certainly, Justice Cooley's remarks have their place, as do pronouncements from, say, Curtis Brown.?ÿ But a survey narrative should stay within the lane of evidence produced during research and field work.
I've cited published rulings (that is appellate or supreme) to show well settled law as it was applicable to my survey.
Except that's not your job to determine.?ÿ I think if I were a judge and someone, anyone, came at me with the position that 'X law applies to Y situation' I would smack that down pretty quickly.?ÿ Maybe it's more a matter of wording, but I would treat case law the same as any other evidence that I used to come to the conclusion that I did.?ÿ Boundary determination is opinion in the end and when it comes to evidence I don't think case law stands any higher than the rest.
Well, I suppose the answer is that there are all sorts of things not memorialized on my map. I don't have enough paper or money to record all my knowledge and every little decision.
That said, I agree with you. Often it is helpful to remove the mystery for the next surveyor on how you got to where you are. That said, what we view as obvious vs needs to be stated is not always on the mark!
Thank you for a very detailed discussion. It was very informative. I will have to read it a few times to get all that you have said. I agree that on complex issues, we should reveal as much of our reasoning as possible.
That said I respectfully offer the following:
There is one statement that I think we need to examine: Once it's on your filed map, it's too late to say, "If I had only known about that fact, it would have changed my opinion."
I would assert it is never too late to come clean about our mistakes and correct the record.
The reality is that we never have ALL the facts. We always, at some point, have to stop and determine that we have enough, or all that we can reasonably know at the time. Our decisions are based on those facts. That is why we sometimes need to record amended surveys. None of us like it, but being wrong at times is part of the cost of making decisions.?ÿ
Your description of how to do a narrative actually opens us up to a lot of critique, in that it exposes our assumptions and decisions. But, I believe that is a good thing.?ÿ
That is, in fact, what case law is.?ÿ With the reasoning and analysis placed into the record, appellate decisions are open to further dissection in later cases brought on appeal.?ÿ Appeals from the trial courts are brought on the basis of matters of law - procedure in particular.
Stare decisis - until overturned ...
Thankfully, Oregon law requires the inclusion of a narrative.?ÿ Some people tend to include the bare minimum.?ÿ Personally, I like to get into the details of what was done.?ÿ If I used case law in my reasoning, I would state it.
Totally against mandatory "narratives" on record maps.?ÿ Never done it because I cite record measurements and cite provenance of every found monument, parcel and every adjoiner's deed record found?ÿ in the courthouse.?ÿ Any competent surveyor can examine my map and determine what I held, didn't accept and established as new corners.?ÿ That's my purview.
"Narratives" often devolve into "I'm not sure but this is what I did" stuff; I've seen 'em where they questioned?ÿ the right of an ajoiner concerning access, prior rights adjacent to a sewage treatment plant or R/W, not our job.?ÿ ?ÿBe a man and find, set the owner's monuments based on record and let it stand.?ÿ
I've been involved with tricky mapping where who owns what is questionable but as an LS I'm tasked to answer that question.?ÿ Let the courts decide it and don't suggest a solution in your narrative.
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How do you handle conflicting evidence? Say two monuments that might be the correct one. You chose one. Do you explain why??ÿ
and for most attorneys...I have heard some strange things come from their mouths.
Most of the time; the guy with the best attorney wins...
Apologies in advance to Evan's wife, but...
Attorneys are like nuclear weapons; in a perfect work they wouldn't exist, but since they do you need more megatons on your side of the argument. ?????ÿ
@eapls2708 my little sister was an attorney. She was the most honest person I know. She defended habitual criminals because that is the function of courts. She would not "offer" facts that did not help her case. She never perjured herself, but there is a big difference between "innocent" and "not guilty". In my example above, I'm sure the attorney did not understand the survey problem he was arguing, so he was quite innocent in my view
You seem to equate a narrative with indecision? That obviously isn't necessarily the case.?ÿ
In a simple retracment where you find all the record corners, just citing the record is certainly sufficient. In slightly more complicated situations a simple note on the plat will be enough, but as the complexity increases more words are required.
Starting simple, what do you do when you are surveying a parcel described by metes without bounds, and what do you do when original monuments are missing on a parcel described by reference to a survey??ÿ
If a case is the basis for a decision there is no reason to be shy about citing it. Throwing names on a map to sound cool is useless. I'm not sure why that's a tough call...
The difference is that an attorney can advocate for their client.?ÿ They will present only that information or material that will benefit their client.?ÿ Surveyors cannot advocate for their client's position.?ÿ We apply case law, rules of construction, and all of the evidence we find to the solution, regardless of who it benefits.?ÿ But our solution is still just a professional opinion based on what we have to examine.?ÿ That opinion could change if additional information is discovered.?ÿ The important thing to remember is not to be negligent in your work.
